May 4, 2021
Nabeela Tareen

Can Same Sex Couples Adopt Children?

The right to family life and family unity is a fundamental right guaranteed to all human beings across the globe. This right has been enshrined in the International Covenant on Civil and Political Rights (ICCPR). This multifaceted treaty was adopted by the U.N General Assembly in 1966 and came into force in the year 1976. This treaty put an obligation upon its 173 signatory ratifying member states, including the United States of America, to preserve and honor the enlisted civil and political rights of individuals. Article 23 of the Covenant states that “[t]he right of men and women of marriageable age to marry and to found a family shall be recognized” and “[t]he family is the natural and fundamental group unit of society and is entitled to protection by society and the State.”[1]

 

That being said, adoption for same sex couples has always been a peculiar and idiosyncratic affair. A couple often ends up in grey waters when they decide to start and raise a family of their own. The legal system of the United States shared a skeptical approach towards the growing trend of same sex couple. Thus, the constitutional recognition of same sex marriages by the Supreme court ruling in Obergefell v. Hodges[2] proved to be a landmark judgment in favor and recognition of support of the LGBTQ+ community. This very judgment created a positive impact on the adoption laws for same sex couples, however several legal hurdles remain yet to be tackled nationwide.

 

The history of same sex parenting before the Obergefell case has its roots dating from around the time of World War II, most notably in the context of prevention or explicit denial of adoption rights to LGBTQ community or the absence of any specific laws in this regard. Several countries have laws against gay or lesbian couples adopting children, for instance, Hungary in December 2020 has expressly banned same sex couples from adoption. Other countries including Belarus, Armenia, Georgia, Azerbaijan, Romania, etc. adopted the same negative approach towards same sex couples.

 

Opponents of same sex adoptions, which often includes private religion-based organizations, preach the moral objections to same sex adoptions and relations. Furthermore, there is also a shared opinion that children raised in gay or lesbian households are most likely to suffer from gender related disorders. However, these blatant opinions were rejected by a study conducted by the University of Oregon, where it was found that there was no difference between children raised by same sex couples and those raised by heterosexual couples. [3]

 

In the United States, adoption is governed by the adoption laws which varies from state to state. In addition, various federal laws (Adoption assistance act, Family and Medical leave act, Omnibus act, etc.) and additional laws (interstate compact etc.) operate in the area of adoption.

Same sex adoption rights have been strengthened every now and then by the judicial system. With the decision of the Arkansas Supreme court, adoption for same sex couple became legal in all 50 states of the USA.[4] It is an established ruling that marriage equality would amount to parents in a marriage whether both heterosexual or homosexual to be lawfully recognized as parents. This marriage equality has also allowed married same sex couples to adopt in several states where they were earlier, not allowed to do so.[5] A study conducted by the University of California’s Williams Institute has revealed that 21% of the U.S same sex couples had adopted children and around 3% had experienced fostering children, the rate, which in comparison to heterosexual sex couples was more than 7%.[6] There has been an increasing shift in the ideologies in the United States towards understanding the human rights of both parents and a child to have a family life with a keen understanding that adoption is a better option for children compared to orphanages along with the awareness that the sexual orientation of parents plays no role in raising a child. However, the fact remains that the process of same sex adoption is not an easy road to venture on. The difference in the laws relating to same sex adoption that vary from state to state often results in the procedure to become complicated, legal, and technical. Thus, it becomes imperative to hire the service of a legal professional with expertise in adoption and family laws to ensure a smooth experience.

[1] https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx ( last visited  12:45 ,dated 9/04/2021)

[2] Obergefell v. Hodge, (576 U.S 644)

[3]https://www.familyequality.org/2017/10/20/a-ver-brief-history-of-lgbtq-parenting/ (last visited 1:38 PM, dated 09/04/2021)

[4]https://www.acluarkansas.org/en/cases/arkansas-v-cole (last visited on 2:30 PM, dated 9/04/2021)

[5] Pavan v. smith, (582 U.S_2017)

[6] https://www.reuters.com/article/us-usa-lgbt-adoption-idUSKBN21D01I (vast visited 4:21, dated 10/04/2021)